Colorado

February 16, 2015

As the national housing market started to recover in the last couple years, there have been a slew of articles with headlines like this September 2014 Washington Poststory: “Housing recovery missing key group: young first-time buyers." In November 2014, the National Association of Realtors' annual survey said, “Despite an improving job market and low interest rates, the share of first-time buyers fell to its lowest point in nearly three decades and is preventing a healthier housing market from reaching its full potential.”

There are multiple reasons for the lack of participation in the housing market by first-time buyers and, unfortunately, I don’t think the situation is likely to change in the near future,” said Rick Sharga, executive vice president of Auction.com. “The main culprit is that the age cohort of first-time buyers, who are normally 25 to 35, was hit the hardest by the recession. Unemployment is still high among that age group and the jobs they do have are often at low wages or are even part-time.”

Reasons also include more difficult loan standards. Student loan debt. Even high rents, which make it harder for young people to save for a down payment (let alone more lucrative to build rental units!)

Here’s something that no one mentions: lawsuits by condo owners who are victimized by shoddy construction - except, that is, if you happened to be a lobbyist for Colorado builders. They seem to have convinced some Colorado lawmakers to try to solve problems in the national housing market on the backs of Colorado victims of substandard condominium construction. They are actually arguing that the “condo market has dried up in Colorado because construction-defects law has increased the liability — along with insurance premiums — for builders to the point where owner-occupied multifamily projects are not viable.”

Specifically, here is what they’d like to do to condo owners. They would like to force them to resolve substandard construction disputes in expensive, rigged arbitration systems designed by the builders, preventing owners from going to court. And they want to make it more difficult for them to join their claims together in class actions, so individuals would have to litigate their construction defect case entirely on their own even though everyone in the complex has the same problem. Notably,

Jonathan Harris, the chairman of a coalition called Build Our Homes Right, says making it more difficult to sue builders for shoddy construction is good for builders — and no one else. "They’re looking for ways to make it harder for the consumer to hold them responsible for their substandard construction," Harris says. "I think that's just so appalling."

Harris speaks from experience. In 2004, he bought a new condo at The Point in Denver's historically African-American Five Points neighborhood. The homes there, he says, weren't built the way they should have been. For example, drainage holes along the bottom of the sliding glass doors were inexplicably sealed over, which causes water to drain into the units instead of away from them when it rains. Two units at The Point suffered so much water damage that they were deemed uninhabitable.

After unsuccessfully negotiating with the general contractor to provide quality repairs, The Point filed a lawsuit in 2011. The two sides eventually reached a settlement, though Harris says the money isn't enough to pay for all of the work that needs to be done. The homeowners, he says, will be stuck making up the difference. Those familiar with construction-defects litigation say that's a common scenario. But Harris worries that forcing homeowners into mediation will result in even worse outcomes, especially if the builders hire the mediator.

Critics like attorney Cass McKenzie, who has represented homeowners, said the measure will just shift legal liability from builders to homeowners. “Forced arbitration on these homeowners could cost tens of thousands to them that they don`t have,” said McKenzie. In addition, McKenzie says condo owners don’t want to trade a jury for an arbitrator because he says the measure will allow builders to pick the arbitrator. “They want to tell you this is the arbitrator that`s going to decide our claims. The problem is it`ll be an arbitrator they`re using over and over again.”

The Colorado builders complain that “condos accounted for more than 20 percent of all housing starts (more than 4,000 units) in late 2005 but only 3 percent through most of 2014.” And, “in 2014, 5 percent of all new housing stock in Colorado was condominiums.” Yeah, well, take a number. Nationally, in November 2014, multi-family starts were down 11% from the same time last year. Moreover, according to the U.S. Department of Housing and Urban Development and the U.S. Census, its August 2014 report showed a “steep 31.7 percent decline in multifamily production.”

In fact, Colorado parallels many national trends, particularly regarding first time buyers. According to a new report commissioned by a local coalition of homeowners, Housing Market Analysis: Supply and Demand, written by Boulder-based Pacey Economics Inc.:

Economic conditions following the recession have contributed to a market in which buying a home is more difficult and expensive than it used to be, the study says.

Higher fees, required credit scores and home prices, as well as wage stagnation, unemployment and lower marriage rates have all kept potential buyers out of the market, said Pat Pacey, principal at Pacey Economics, during a conference call Tuesday.

Higher student-debt loads have also contributed to the younger generation holding off on buying a home, she said.…

“Clearly, the increased down payment, origination fees, mortgage insurance premiums, reduced real earnings are all more significant financial deterrents to home ownership than any barrier from construction-defect laws.….

Her study also concluded that the market value of apartments relative to condominiums and detached homes has grown steadily since 2006, creating an incentive to build apartments. She said the condominium market was built to a point of surplus in 2009, leading to the current ebb in condo construction.…

Oh, and here is another thing these lawmakers want to do: “lessen the amount of time a homeowner would get to take legal action against a builder or contractor — known as the statute of repose — from six years to three years after a project is completed,” arguing that “could lead to a reduction in the cost of insurance for homebuilders.”

Funny story. Back in 1997, the general aviation industry (small aircraft) got Congress to do the same thing, to enact a “statute of repose” for victims of plane crashes caused by product defects, promising that this law was needed to bring down insurance rates. The next year, John E. Moore, Cessna’s senior vice president, was called to testify before the Senate Commerce Committee, and was forced to admit that the law caused no decrease in insurance costs and that the price of planes had gone up.

Congress got taken for a ride on that one. I know Colorado lawmakers are smarter than that.

June 07, 2013

There’s a collective nervousness in the country about hydraulic fracking a.k.a. “fracking” – the highly controversial natural gas drilling method that should
be of concern to anyone who likes their drinking water poison-free and not
flammable.

Some Colorado cities are in open rebellion against
the state’s pro-fracking Governor and have passed their own fracking
moratoriums. In New York, anticipating the same actions by
local communities as we await Governor Cuomo’s decision whether to defy John
Lennon’s widow and son (among millions of others) and lift the state’s fracking moratorium, “a gas drilling company and an upstate
farmer have asked New York’s top court to review a recent decision upholding
the right of towns to ban drilling.” In Illinois, a relatively tough (that’s not saying much) fracking
regulatory bill allowing fracking within 301 feet of lakes, just passed with some
environmental groups caving on their prior moratorium demand, sparking protests
by the rest of the environmental community.

One of the concerns in Illinois is that regulated fracking
does not work. And here’s a related problem. Despite the best efforts of
Hollywood’s Matt Damon and John Krasinski (not to mention Josh Fox), there is still a lot of secrecy surrounding this issue.

For example, in California, “Energy firms are permitted to
keep secret the mix of chemicals they use to extract the oil and gas [and] the
state is not given explicit notice of when and where fracking is taking place.” This is a state where, according to an
newly-released poll,

More than half of voters — 58% — say they favor a moratorium
on the process of injecting chemicals deep into the ground to tap oil and
natural gas deposits embedded in rock until an independent commission has
studied its environmental effects. … Voters' concern about the environmental and
safety implications of fracking, also known as hydraulic fracturing, surfaced
repeatedly.

Secrecy results not only from poor regulation and oversight, as in
California. It is also a deliberate strategy
by companies themselves to keep the public from learning just how badly
they are harming families and the land they frack. WritesBloomberg in a new story
called “Drillers
Silence Fracking Claims With Sealed Settlements,”

In cases from Wyoming to Arkansas, Pennsylvania to Texas,
drillers have agreed to cash settlements or property buyouts with people who
say hydraulic fracturing, also known as fracking, ruined their water, according
to a review by Bloomberg News of
hundreds of regulatory and legal filings. In most cases homeowners must agree
to keep quiet.

The strategy keeps data from regulators, policymakers, the
news media and health researchers, and makes it difficult to challenge the
industry’s claim that fracking has never tainted anyone’s water.

What’s
more, “Because the agreements are almost always shrouded by
non-disclosure pacts … no one can say for sure how many there are. Some stem
from lawsuits, while others result from complaints against the drillers or with
regulators that never end up in court. … Aaron Bernstein, associate director of
the Center for Health and the Global Environment at the Harvard School of Public
Health, said [n]on-disclosure agreements 'have interfered with the ability of
scientists and public health experts to understand what is at stake here.'”

Said
one attorney, “At this point they feel they can get out of this litigation
relatively cheaply … Virtually on all of our settlements where they paid money
they have requested and demanded that there be confidentiality.”

Confidential settlements where the public
health and safety is involved are never a good thing. And for these companies, silence has proven to be golden.

April 03, 2013

The insurance industry spends about $6 billion a year trying – largely unsuccessfully - to get drivers to switch their car insurance policies. (This is a $160 billion market and the big carriers control half of it.) Never-ending expensive TV commercials - that’s what most people know about insurance companies – until, of course, their lives have been wrecked by something they thought was covered by policies, for which they’ve been paying for years. Let’s take a look at a few recent episodes.

Homeowners. Homeowners whose lives were shattered by Superstorm Sandy are still engaged in perpetual battles with insurers to get their flood insurance claims properly paid. The situation is no better for homeowners claiming under their non-flood policies, with insurers putting homeowners’ money into escrow accounts and then micromanaging repairs. Writes one policyholder, “No matter insurance company has documentation already and has approved repairs. No matter repairs have been made and homeowner just wants reimbursement.… TD Bank has this policy. So does Wells Fargo. Problem is you don't know this until u go to deposit insurance check.”

Business interruption insurance. All kinds of businesses where shut down after Superstorm Sandy, but insurers aren’t paying the claims, saying buildings were closed due to flooding (so not covered by their policies). But others say that’s ridiculous.

“It was not water related," says Andrea Katz, interim development director at [radio station] WBAI. “It was a restricted building that we were not allowed entry to and therefore could not do business as usual.”…

“It seems like they have lawyers that write these things out, and everything’s so opaque that they can just find a way to get out of it,” says Norman James, co-owner of Space Salon.…

The New York State Department of Financial services is now investigating these and other business claims from Hurricane Sandy.

Meanwhile, many businesses are seeking legal counsel, getting ready for a fair fight.

Fire insurance.

Victims who lost everything in [Colorado’s] Waldo Canyon fire last summer asked lawmakers at the Capitol on Tuesday to go even further in their reform of the insurance industry that they say left them in the lurch. …

It took Steve Price, who lost his roughly 5,000-square-foot home … two months to get a certified copy of his insurance policy after the fire. It took another two months to get copies of underwriting documents.
“It’s a pattern among our insurance companies to delay, deny and ignore,” Price told a Senate committee considering House Bill 1225. “These contracts are unfair to begin with.”

The bill would require insurance companies doing business in Colorado to comply with a number of new mandates, including that a copy of a policy be provided within three days of the homeowner’s request. Policies would also have to be written on a 10th grade reading level and written notifications of changes in policy would be required.
Price said he was very well prepared for a disaster, with photos documenting his home’s current state and contents, and he still was still about $10,000 underinsured.…

Ideally, he said Colorado should become one of 19 states that require insurance companies to pay out the maximum value of a policy in the event of a total loss — known as valued policy laws.

Incredible that this should even be an issue.

Health Insurance.
Health insurers are “letting millions of Americans renew their current coverage for another year — and thereby avoid changes under the federal healthcare law” and “critics say this maneuver could undermine government efforts to remake the insurance market next year and keep premiums affordable overall.…”

“Insurers are onto this, and the big question is how many will try to game the system,” said Timothy Stoltzfus Jost, a law professor and health policy expert at Washington and Lee University.

Some of the nation's biggest health insurers are looking to take advantage of this delay, and Arkansas officials are encouraging companies to do this by resetting customers' renewal dates for the end of December. There's also concern that some insurers and agents could rush to sell more individual policies before year-end so they could be extended in 2014.

Some policy experts are expressing concern about this practice for fear that insurers will focus on renewing younger and healthier policyholders and hold them out of the broader insurance pool next year. Their absence could leave a sicker and older population in new government insurance exchanges, driving up medical costs and premiums there.

Meanwhile, California’ awesome insurance commissioner, Dave Jones, seems to be the only commissioner in the country actually looking out for policyholders by consulting with a respected consumer organization, Consumer Watchdog, on how to protect small businesses from unneeded rate hikes. The group already has a spectacular record of saving California policyholders billions of dollars. The industry is complaining about this. They seem to prefer that the commissioner consult only with insurance industry-connected actuaries (like every other commissioner does), ensuring that price-gouging of California’s businesses remain uninterrupted.

In its first report Tuesday, the Santa Monica group accused Anthem of padding its profits and overcharging small-business customers by about $17 million. …
Jones criticized Anthem Blue Cross for raising rates on about 7,000 small businesses as much as 23% and said the company rejected his request for lower rates. Anthem said its average rate increase of nearly 11% for these 45,000 employees and their dependents was necessary to cover rising medical costs.

Jamie Court, president of Consumer Watchdog, said the group's proven track record in challenging insurance company practices made it an ideal choice for the state. Consumer Watchdog says it has saved Californians $2.3 billion since 2003 by successfully disputing rate hikes for property and casualty insurance under Proposition 103, the 1988 ballot measure the group championed.

"We are the foremost expert on health insurance rates," Court said. "This grant allows us to pull back the curtain and show how the wizards at Anthem and other companies are manipulating Oz. We want to prove that rates are too high."

Insurance-industry commissioners. Meanwhile, former and hoping-to-be-reappointed Texas insurance commissioner, Eleanor Kitzman, is decidedly not on the side of policyholders. She’s hoping to win reappointment from Governor Rick Perry, but not if consumer advocates have anything to do with it.

One of the loudest critics, Alex Winslow of the consumer advocacy group Texas Watch, said that home insurance rates had “skyrocketed” during Kitzman’s term and that she had rolled back rules created to inform doctors and patients about high out-of-network expenses before those charges were incurred. Winslow can and does go on about what he sees as her shortcomings, but the important thing is that few in the Capitol or the insurance industry — which was initially full of praise for her — are leaping to her defense.

And a final observation: If only policyholders could demand that their billions in premium dollars pay for legitimate claims instead of TV commercials.

March 25, 2013

Lots of talk over the weekend about guns. On Saturday night, 3,000 house parties and a national town hall discussion took place, hosted by MoveOn.org with Michael Moore and a panel of experts following the screening of the Oscar-winning documentary, Bowling for Columbine. Yoko Ono’s heartbreaking twitter photo of John Lennon’s bloody glasses went viral. And the New York Timescovered the new $12 million national advertising blitz by New York City Mayor Michael Bloomberg, which “focuses on senators who he believes might be persuaded to support a pending package of federal regulations to curb gun violence.” Bloomberg said on Meet the Press that he’s “optimistic” that Congress will pass something. NRA head Wayne LaPierre said the Mayor is trying to “buy America.” I guess when you represent a lobby group that thinks it already owns America, such a thing must be hard to reconcile.

And among the things that apparently Mr. LaPierre thinks he owns when it comes to guns, is the legal system. It was his lobby group that forced upon the nation a law that not only immunizes gun manufacturers for gun violence at the national level, but also prevents state officials seeking to protect their own citizens, from establishing any meaningful legal accountability for gun violence. It was this same federal law that made it impossible for Colorado lawmakers to include in its recent gun control package some legal accountability for the gun violence that has already devastated that state.

At the same time, the NRA has rushed into Buffalo court to challenge New York’s new gun control law, which includes “a lower limit on magazine capacity and an expansion of the state's assault weapons ban to include some popular and formerly legal semi-automatic rifles.”

[T]he state will suspend the April 15 effective date of New York’s law banning the sale of magazines with more than seven bullets to give lawmakers time to change the statute.

The changes are happening as [Governor] Cuomo, 55, has been attacked by pro-gun groups who claim the law was rushed through. In January, Cuomo, a Democrat, waived a requirement for a three-day waiting period between a bill’s introduction and vote.

The legislature approved the measure within 24 hours of its introduction. Rich Azzopardi, a spokesman for Cuomo, didn’t respond to an e-mail yesterday seeking comment on the lawsuit.

We’ll have to wait and see if the NRA wins its case. But in being forced to drop the Colorado bill that would have included a new liability standard for gun owners and sellers – an attempt to get around the federal immunity law - Colorado Senate President John Morse said, "Cleansing a sickness from our souls doesn't come easy. It's gruesome.”

February 07, 2013

Do not be fooled by the title of this post. When we say “free market,” we don’t
mean a supermarket stocked with shelves of free weapons. We're talking “Adam Smith!”

Since the tragedy of Sandy Hook, lawmakers around the
country have been trying to figure out what to do about the 2005 law that
provides the gun industry with immunity for gun violence, for which the powerful NRA
and gun manufacturers lobbied heavily.
(See our post here.) There are efforts in Congress to
repeal the law.

And some lawmakers in Colorado are trying to boost this
effort
by proposing a state law to hold the industry liable, knowing there may be a
conflict but “hop[ing] to help spur an effort to repeal it.”

So what else can be done?

Turns out that 25 years ago, Nelson Lund, the Patrick Henry
Professor of Constitutional Law and the Second Amendment at George Mason
University School of Law (the only Chair in America endowed by the National
Rifle Association) proposed a free market idea that would have made Adam Smith very proud - liability insurance for gun owners.

"My idea was to suggest an idea in
which a statute might be drafted that would be designed to inhibit the
possession of firearms by irresponsible people and do what liability insurance
at least partly does and that is compensate the victims of irresponsible
behavior," Lund explained.

Quoting a January 2013 article in the
Hartford-Courant, this George Mason University Law School blog post noted:

"Insurance companies 'have the ability to collect the
data and they have the analytical approach to understand the risk … This is their business. They make money or lose money over time by their
assessment of risk. They aggregate a lot of data and assess risk.'…

"Gun owners, columnist John Wasik said, should be
required to pay for the risk that comes with weapons."

"'I'm applying more of a market economics view,' Wasik [said]. 'If we cannot regulate this through constructive means, there are
other ways of looking at this in terms of pricing the risk.'"

"The responsible gun owners will not get penalized. The
people who are most at risk will pay more."

California on Tuesday became at
least the fourth state to have a liability insurance bill introduced, following
Massachusetts, Maryland and Connecticut.

No state has a gun liability
insurance law. Since 2003, almost two dozen such bills have been rejected
nationwide, 15 of them in New York, according to the National Conference of
State Legislatures.…

A Maryland proposal would mandate
that anyone possessing a firearm have liability insurance of at least $250,000.
It requires anyone selling, renting out or transferring a gun to verify that
the person getting it has liability insurance.

Not surprisingly, the “endowers” of the Patrick Henry
Professor of Constitutional Law and the Second Amendment Chair, think this
infringes on their constitutional rights. NRA spokeswoman Stephanie Samford said the organization
opposed liability insurance for gun owners because it was "economically
discriminatory."

"You don't have to carry insurance to exercise any
other constitutional right," Samford said.

Maybe they should consult their own Constitutional Law and Second Amendment law professor on that.

November 08, 2012

If you’re one of the 18 to 29-year-olds who made up 19 percent of voters this year (a higher percentage youth vote than in 2008! Yay!), you are mostly likely unfamiliar with an annoying 1970s Chiffon Margarine TV commercial that goes “It’s Not Nice to Fool Mother Nature!” But whether you’re 18 or 85, that universal “don’t fool with me” sentiment seems to have marked a number of election contests this year, even besides the obvious (i.e., women, gays and pot!)

Let’s start with the California’s insurance industry. Don’t mess with the 1988 insurance reform initiative, Proposition 103, and the consumer group behind it, Consumer Watchdog. Billionaire Mercury Insurance Chairman George Joseph just wasted $17 million on his Proposition 33, which would have repealed Prop. 103’s provision preventing insurance companies from charging more to drivers who had a lapse in insurance coverage. This is about what Joseph spent almost exactly two years ago on basically the same ballot measure. Yet despite being outspent by Joseph 70 to 1 (the Consumer Watchdog coalition had only about $275,000), Prop 33 went down!
Next up for Consumer Watchdog: the health insurance industry!

Speaking of the insurance industry, seems like they’re a little nervous that their influence-peddling in Congress may be in need of some new targets. Reports the National Underwriter’s website,

Rep. Judy Biggert, R-Ill., was defeated for re-election, a
victim of redistricting. She headed the Subcommittee on Insurance, Housing and
Community Opportunity of the House Financial Services Committee, and was
expected to be a big player on insurance issues. She shepherded the [National
Flood Insurance Program] bill through its tortuous, five-year path to a
long-term extension. The bill was finally enacted in July. It is unclear who
will succeed her as chair of the insurance subcommittee. Biggert was also
expected to be a key player on regulatory issues as well as in gaining passage
of A Terrorism Risk Insurance Act extension. Joel Wood, senior vice president of congressional affairs of
the Council of Insurance Agents and Brokers, called Biggert's defeat,
“extremely disappointing to the insurance industry.”

I can see why they’re anxious. Between escaping payment for climate-related floods and getting bailed out for
terrorist attack losses, this industry clearly needs some
friends.

And speaking of elections, here are a few other interesting
outcomes:

The U.S. Chamber of Commerce finally got their wish in West
Virginia, ousting consumer-friendly AG Darrell McGraw who had held office for
20 years, “perhaps marking the start of major changes to West Virginia consumer
protection litigation… [McGraw] has won the state more than $2 billion in
consumer protection lawsuit settlements against pharmaceutical, coal and
tobacco companies and unscrupulous lenders, according to his office.”

They also got supermajorities in states like Indiana,
Wyoming and Tennessee (both Houses), North Carolina (one House plus Governor)
and won back majorities in states like Wisconsin. (See more here and here.) But the good news is that state houses flipped the other way
in Colorado, New York, Maine, Minnesota, and Oregon (where there had been a
tie), with apparent supermajorities in California
and Illinois! And that awful New
Hampshire Speaker who pushed through that horrendous anti-patient medical malpractice bill (which
we covered here) is no longer speaker since the Democrats took over! Let’s hope a repeal is on the way!

Iowa
retained Justice David Wiggins, the Supreme Court Justice who had ruled on same-sex marriage with
a 54% retention rate. (This
is in counter to two years ago when 3 of Wiggins’ colleagues were thrown
out by voters.)

In North
Carolina, incumbent Supreme
Court Justice Paul Newby won over appellate Judge Sam “Jimmy”
Ervin IV thanks to an unprecedented and disturbing amount of outside money from business
interests and conservative groups.

In Mississippi, attorney Josiah Dennis Coleman won
over pro-consumer attorney Richard Phillips due to nasty outside money:
"The out-of-state special interest group Law Enforcement Alliance of
America ran advertising in north Mississippi blasting Phillips as a trial
lawyer who had filed a lot of lawsuits against business. …Phillips said
the Virginia-based LEAA was trying to buy a seat on the court. He said
such groups can put out negative ads that distort the truth without
disclosing who are the individuals paying for the ads."

August 03, 2012

We’ve invited SNL’s city correspondent Stefon to tell you what you need to know about ThePopTort’s hottest story updates this weekend! (If you don’t know Stefon, here’s one of his recent New York City club recommendations: “New York’s hottest club is Taste. Nightlife designer Tranny Griffith is back with an all-new club that answers the question Huh?!? Don’t look for a bouncer – there isn’t one. Instead the door’s guarded by ten jacked homeless guys in old-fashioned bathing suits. And inside it’s just sick: ice sculptures, winos, Germufs – German smurfs – a Teddy Ruxpin wearing mascara, an old lady wearing Kid 'N Play hair, and none other than DJ Baby Bok Choy.”) Ok, here goes.

Back in October, we told you about the Center for Justice & Democracy’s new study, Headline Blues: Civil Justice In The Age Of New Media. This report shows how the media are producing a deeply skewed and distorted understanding of our civil jury system. Along those lines, this week’s hottest irresponsible media story was coverage of a medical malpractice jury verdict in Colorado. This verdict will be drastically cut due to the state’s cap on non-economic damages but you’d barely know that thanks to news articles like this and this. Coverage of this verdict has everything: screaming headlines of an eye-popping verdict, sensationalization of the verdict throughout most of the articles, irresponsible placement (i.e. far down into the articles and in one case the very last paragraph) of the fact that state law “caps” damages regardless of what a jury awards.

Next, we told you last year about the painful impact of Indiana’s state liability “cap” as applied to the Indiana State Fair state collapse. This tragedy had everything: 7 deaths, many injuries, some catastrophic. A state law that capped damages at $5 million for the entire incident, upped to $6 million by the General Assembly. And now this week, we learn that anyone who accepts a paltry state settlement must also accept a limited private settlement from companies that built the stage along with a complete waiver of liability for any claim against them. And victims are given a whopping two weeks to act.

Finally, one of the U.S. Supreme Court’s hottest cases next term is Kiobel v. Royal Dutch Petroleum, which we last covered here. This case presents important issues for a Court hell bent on immunizing corporate wrongdoers from liability. This includes the possible (some think likely) drastic curbing of the age-old Alien Tort Statute. The ATS is a remarkable federal law that until now has allowed people from countries outside the United States to sue foreign individuals and multinational corporations that commit human rights violations abroad - like torture, crimes against humanity, war crimes, genocide, disappearances, summary execution, etc. Thompson Reuters provides a new analysis here, noting that “the State Department's legal adviser, former human rights litigator Harold Koh, refused to sign the Justice Department's recent amicus brief advocating certain limits on the ATS's reach overseas.” That should tell you something right there.

On the other hand, and for no particular reason, here are some great NYC club recommendations. Have a great weekend!

July 25, 2012

I’m sure I’m not the first person to think of the late great Warren Zevon when news broke of the unfortunately-timed civil lawsuit just filed by one of the victims of the Aurora shooting. The primary case “center[s] on the safety and security procedures at the theater” but some experts say, according to Bloomberg, that such claims may not be successful “because such cases require some proof that a company or organization acted unreasonably, and knew, or should have known, about the danger posed.” Of course, Aurora CO wasn’t completely unaware that insane individuals were capable of mass murder. In the 1990s, a guy walked into an Aurora Chuck E. Cheese and killed four people. And of course, there was Columbine, only 17 miles way. But this was a movie-theater first, and a judge may very well throw it out.

But we’re a lot more concerned about the various “get out of jail free” cards for which the National Rifle Association has lobbied so hard around the country, all for the purpose of ensuring that the gun industry – as well as “shooters gone rogue” - are never held responsible for any of the consequences of this nation’s gun violence. For example, in 2005, President George W. Bush signed into law the NRA’s Protection of Lawful Commerce in Arms Act, which shields the gun industry from liability when the acts of a gun dealer or manufacturer contribute to gun violence.

Earlier this year, we covered the civil liability protections buried in Florida’s "Stand Your Ground" law. At the NRA’s behest, these laws had been pushed around the country by the American Legislative Exchange Council (ALEC), which is holding its annual convention in Utah as we speak. Goodness knows what those BFF’s, the NRA and ALEC, will come up with next.

But no wonder they’re concerned. Given that the gun industry is virtually unregulated in the country, the threat of legal liability is probably the best way to change the way gun manufacturers and distributors make their products available to the public. This was all explored in a 2003 newsletter from the Center for Justice & Democracy. At the time this was written, the “Protection of Lawful Commerce in Arms Act” had just passed the House, so there was still hope of stopping it. But alas, things got decidely worse. Here what CJ&D observed back then.

After cities began filing lawsuits against gun manufacturers in 1998, Colt Manufacturing Co. announced that it would stop selling most handguns to the civilian market due to liability concerns. Facing the threat of future multi-million- dollar awards and the prospect of having its insurance canceled, Remington recalled 200,000 air rifles and air pistols within days of settling a case brought by a man who became paralyzed after a Remington air rifle suddenly discharged during a hunting trip even though the safety release was pushed into the “OFF” position.…

As Professor Stephen P. Teret, director of the Center for Gun Policy and Research at Johns Hopkins University, wrote in the Washington Post, “When needed regulation of products is thwarted by politics, health advocates turn to the courts for help. …Some argue that legislation is the only proper, legal route for protecting the public’s health. But litigation is designed to remedy injustices, and there should be no question about the injustice of a product that needlessly injures and kills tens of thousands.”

June 08, 2012

Forget The Hunger Games. Today in America, we're all playing The Eating Games and here’s how it’s played: eat something and hope it doesn't kill you. Let’s review some of the different ways this game is being played this week.

First came news on Monday that Jensen Farms in Colorado, which was identified as the source of a deadly listeria outbreak last fall involving cantaloupes, killing 30 and sickening 146, may be close to settling. “Bill Marler, a lawyer for 39 of the plaintiffs, said the settlement also could include a company that manufactures and imports food-processing equipment and a firm that did a safety audit of the farm.” That’s good news (assuming the bankruptcy judge approves it now that Jensen has filed for Chapter 11). For more on Jensen, the listeria outbreak and the failure of safety audits, see the Center for Justice & Democracy’s recent report, Our Fatal Food Attraction; Regulatory Failures and the Civil Justice System.

Next came news Wednesday that the House Appropriations Subcommittee on Agriculture, "approved funding for the U.S. Department of Agriculture and the U.S. Food and Drug Administration for fiscal year 2013 with no new funding for food safety.” (emphasis added) At least the subcommittee didn’t cut the budget, as threatened. But given the distressing state of food safety - especially when it comes to the FDA, charged with regulating everything besides meat, poultry, processed egg products and catfish while only inspecting facilities every 5-10 years (learn more here), this isn’t great news. Plus, the FDA is trying to obtain “substantially more resources to help implement the Food Safety Modernization Act," signed into law in 2011, which is supposed to improve things except there’s never been funding to implement it.

As part of President Obama's push to streamline regulations on businesses, the U.S. Department of Agriculture plans to let chicken slaughterhouses run production lines faster and with fewer federal inspectors, angering food safety advocates and poultry plant workers.

Under the proposal, production lines would be allowed to move 25% faster, while the government would cut by as much as 75% the number of line inspectors eyeing chicken bodies for defects before the carcasses are packaged for consumption.…

Tony Corbo, at the health advocacy group Food and Water Watch, calls it "a privatization of poultry inspection" because plant employees would be responsible for spotting and removing defective chickens. Consumer advocates said the rising rates of salmonella infection in recent years should give pause to any plans to cut the number of federal inspectors at poultry plants.

Yuck. On the other hand, “the National Chicken Council” and its $45-billion-a-year poultry industry client loves the idea.

Interestingly, writes the LA Times, “Most poultry plants are located in the South.” Speaking of which, we also learned this week that federal and state health officials in the South are trying to figure out the source of “what appears to be a multistate E. coli outbreak that recently took the life of a 21-month-old child in Louisiana.” Ironically, as ABC Newspoints out, “The largest cluster of five sickened people, ranging in age from 18 to 52, is centered in Atlanta [Georgia], home to the Centers for Disease Control and Prevention.”

My first thought after reading all this was to jump on the vegan bandwagon with President Clinton and Michelle Pfeiffer. But what good will that do, with lethal cantaloupes roaming around out there? I’m open to suggestions.

June 18, 2010

In a recent post, we reported on the insurance
industry-funded (in part) Rand Institute for Civil Justice study that made a supremely
obvious finding: “[There is a] highly significant correlation between
the frequency of adverse events and malpractice claims: On average, a county
that shows a decrease of 10 adverse events in a given year would also see a
decrease of 3.7 malpractice claims.”In other words, “the best way to reduce malpractice litigation – for
everyone, including doctors - is not to limit the rights of injured patients,
but to reduce the amount of malpractice.”

In Colorado, patient safety pioneer Patty Skolnik has led
the chargefor enactment of one method to help
reduce errors: disclosure laws that force health care professionals to
publicly disclose their prior safety record.This means that at least patients are better informed about
the person to whom they entrust with their health care.

It’s one thing to empower patients, which is very important.It’s quite another thing,
however, for the government to actually do something to sanction bad,
repeat-offending doctors.As we
reported last week, the New York State Department of Health (DOH), for one, has
failed miserably at this.

So rather than focus on its own monumental failures, guess
what DOH doing?It is
participating in a new federally-funded hospital program whereby patients
injured in certain hospitals will beforced into a newly created, biased legal structure, where the health
industry essentially becomes (or highly influences) the decision maker as to whether malpractice occurred.

Right after someone is hurt, the hospital will conduct a “rapid investigation” and it will
decide if malpractice occurred.If so, it will then try to settle with the patient before the patient has
consulted an attorney or expert, has independently investigated what happened
or has any idea the extent of the injuries with which they are dealing (imagine
knowing at birth what a brain-damaged baby’s lifetime special needs will
be).The patient will also be
specifically warned that if the hospital thinks it did nothing wrong, “the
institution will vigorously defend the involved clinicians.”

If the patient hasn’t been scared off yet, they can file a lawsuit
but they must submit to negotiation before a pre-screened judge trained by the
health care industry who will have a "Medical
Advisor" who will “independently assess whether there was malpractice and
how much compensation the patient should get.”You might expect that eventually, the hospitals’
attorneys will become pretty buddy-buddy with the small number of judges in
this program.So the notion of an
unbiased process that is the hallmark of our legal system is pretty much thrown out the window.

And who will be evaluating the
success of this new program?The
Harvard School of Public Health professor who has a consultancy arrangementwith an industry-funded organization called Common Good, which is dedicated
to wiping out the right to civil jury trial.

DOH has the nerve to say that “"No rights are being
taken away from any patient" by this program. But the back-door agenda here could not
be more clear.New York State,
which has had severe tort reform on its books since the mid-1980s, has more
recently rejected ideas like capping compensation for medical malpractice
patients or wiping out the right to trial by jury for the families of
brain-damaged newborns.DOH calls this, “not yet ma[king] significant headway
reforming the medical liability system.”Then they say,“The NYS
Model, if successful, will demonstrate that hospitals, with support from the
state, the legal community and the judiciary, can advance medical liability
reform without legislation while remaining true to their mission to serve their
patients and do no harm.”Except
for the harm they are doing to patients, that is.

There are a lot of people who should be pretty angry about
this, not the least of which is the New York legislature.

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